H.r.h. Eze Dr. Frank Adele Eke V. Mr. Godfrey Chizieze Ogbonda (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This appeal is against the decision of the Court of Appeal, Port Harcourt Division delivered on 12-2-2001 refusing to set aside its own judgment delivered on 16-7-1998.
The appellant and the respondent in this appeal were also parties in appeal No. CA/PH/304/97 then pending at the court below in which the respondent in this appeal was the appellant while the appellant in the present appeal was the respondent. The record of this appeal shows that when that appeal No. CA/PH/304/97 between the same parties in this appeal came up for hearing at the court below on 12-5-1998, on the application of the appellant who was yet to file his respondent’s brief, the appeal was adjourned to 23-6-98 for hearing. On this date both parties were represented by counsel but the appellant who was the respondent was yet to file the respondent’s brief of argument. In line with the provision of Order 6 rule 10 of the Court of Appeal Rules, the court below heard the appeal on the appellant’s brief alone without hearing the respondent in oral argument and the record does not show any such request coming from his counsel. Two days after hearing of the appeal, the appellant as respondent in the court below filed a motion on notice on 25-6-1998 for extension of time to file the respondent’s brief. This motion was fixed for hearing on 5-10-98. However, on 16-7-1998, the court below delivered its judgment allowing the appeal and ordering the hearing of the appellant’s action afresh by another Judge of the trial High Court of Rivers State.
Not satisfied with the judgment against him, the appellant filed a motion at the court below on 15-5-2000 asking for the setting aside of the judgment of that court of 16-7-1998 and the striking out of the notice of appeal filed on 14-11-97 upon which the appeal was heard. The court after hearing the parties on this application, saw no reason to set aside its judgment and therefore dismissed the appellant’s application on 12-2-2001. It was this decision of the lower court against the appellant that gave rise to this appeal.
From the three original grounds of appeal and one additional ground contained in the appellant’s notice of appeal, two issues were formulated in the appellant’s brief of argument. The two issues are-
“(i) Whether or not the judgment of the Court of Appeal dated 16th July, 1998 was a nullity, having regard to all the circumstances.
(ii) Whether or not the Court of Appeal has jurisdiction to review its own judgment which is null and void.”
In the respondent’s brief of argument however, from the same four grounds of appeal in the appellant’s notice of appeal, the following two issues were distilled:-
“1. Whether this appeal is competent,
- Whether the decision of the Court of Appeal was correct.”
In the respondent’s brief of argument, the index to the contents therefore shows the respondent was relying on a notice of preliminary objection to the appellant’s appeal. However, there is no such notice in the respondent’s brief or any indication from the record that such notice was ever filed in the registry of this court giving the appellant three clear days notice of the objection before the date fixed for the hearing of the appeal in compliance with Order 2 rule 9 of the rules of this court. Instead, what the respondent did was to incorporate the terms of his preliminary objection to the appellant’s appeal as an issue arising for the determination of the appeal as issue one in his brief of argument which reads –
“Whether the appeal is competent.”
Obviously, this is not how a preliminary objection is raised under Order 2 rule 9 of the rules of this court. The law is trite that an issue for determination of any appeal is derived from the grounds of appeal filed by the appellant. Therefore any issue not distilled from such grounds of appeal is incompetent and ought to be discountenanced in the determination of the appeal. See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265, Onyido v. Ajemba (1991) 4 NWLR (Pt.184) 203.
As none of the appellant’s grounds of appeal complained of the competence of the appeal, the respondent’s issue as to whether this appeal is competent has no place in the determination of this appeal. This is because a respondent to an appeal who has not cross-appealed, cannot raise an issue outside those framed or formulated by the appellant from the grounds of appeal filed. See Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373 and Kuusu v. Udom (1990) 1 NWLR (Pt.127) 421. Consequently, the preliminary objection to the competence of this appeal raised as issue one and argued in the respondent’s brief of argument, not having been raised in accordance with Order 2 rule 9 of the Rules of this court is incompetent and shall be ignored in the determination of this appeal. See Niger Progress Ltd. v. N.E.L. Corporation (1989) 3 NWLR (Pt.107) 68 at 82 and Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 at 245. For the same reason, the second issue in the respondent’s brief which also does not arise from the grounds of appeal filed by the appellant must suffer the same fate.
Coming back to the two issues earlier quoted in this judgment as raised in the appellant’s brief of argument, it is quite clear that both issues were framed from ground (iii) of the grounds of appeal which specifically complained that the court below erred in law resulting in the violation of the appellant’s right of fair hearing when that court refused to set aside its own judgment of 16-7-1998 which was a nullity. Following this development, it means that no issue for determination was distilled from the appellant’s ground (i) complaining that the decision of the court below on the grounds of appeal contained in the respondent’s notice of appeal filed on 14-11-97 were grounds of law requiring no leave for the grounds to be filed; ground (ii) complaining of the refusal of the court below to strike out the respondent’s notice of appeal filed on 14-11-97 and ground (iv) of the appellant’s grounds of appeal being an omnibus ground of appeal. In this situation where appellant fails to frame an issue from any ground of appeal filed, and the ground is not related to any issue for determination, the ground of appeal is deemed abandoned by the appellant and is liable to be struck out. See Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192 and Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 647. Putting it differently, as the two issues distilled by the appellant in the appellant’s brief of argument for the determination of this appeal are not covered by, nor arise from grounds (i), (ii) and (iv) of the appellant’s grounds of appeal, those grounds are deemed abandoned as was the case in Sparkling Breweries Ltd. v. Union Bank of Nigeria Ltd. (2001) 15 NWLR (Pt.737) 539 at 556. In line with the law applicable in this regard, the appellant’s grounds (i), (ii) and (iv) of the grounds of appeal having been abandoned are hereby struck out.
In any case, the grounds of appeal being a challenge to the competence of the respondent’s appeal before the lower court by the notice of appeal filed on 14-11-1997, in the absence of an appeal against the same judgment of 16-7-1998, the competence of the judgment cannot be challenged through the back door by an application to set it aside. In other words the competence of the respondent’s appeal resulting in the judgment of 16-7-1998, can be challenged only by an appeal against that judgment. This leaves ground (iii) from which the appellant’s issues (i) and (ii) have been formulated. Although framing two issues from a single ground of appeal by the appellant amounts to proliferation of issues the practice of which had been frowned at in several cases by this court such as Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1 at 30; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352, Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 at 214; Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128 at 136 and Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376 at 384, the ground and the issues are in my view competent to sustain this appeal and I shall proceed to determine the appeal on the issues together.
Starting with the first issue which is whether or not the judgment of the Court of Appeal dated 16th July, 1998 was a nullity, the appellant had argued that although under Order 6 of the Court of Appeal Rules, that court may not hear oral argument of a respondent who has defaulted in filing his brief of argument, for the court to proceed with the hearing of the appeal without the respondent’s brief, the appeal must first have been set down for hearing on the appellant’s brief alone. Learned appellant’s counsel contended that since the record of appeal were obtained by the appellant only on or about 11-5-1998, the 45 days allowed under the rules for the respondent’s brief to be filed expired on 27-6-1998. Therefore by 23-6-1998 when the respondent’s appeal was heard, the appellant was not out of time to warrant his being excluded from participating in the hearing resulting in that court, thereby denying him or depriving him of his right of fair hearing under section 33(1) of the 1979 Constitution. That since on the authority of Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors. (1999) 6 NWLR (Pt.199) 501 at 539, the decision arrived at after denying a party right of fair hearing is a nullity, the court below acted in error in refusing to set aside its decision of 16-7-1998, which was a nullity. Learned counsel further argued that because the judgment of 16-7-1998 was further vitiated by the failure of the court below to hear and determine one way or the other, the appellant’s motion dated 23-6-1998 for extension of time to file respondent’s brief and fixed for hearing on 5-10-1998 before the delivery of the judgment, the appellant’s right of fair hearing was further breached justifying the setting aside of the judgment. The case of Chungwom Kim v. The State (1992) 4 NWLR (Pt.233) 17 at 37 was relied upon in support of this submission.
On the question of whether or not the Court of Appeal has power or jurisdiction to review its own judgment raised in the second issue, learned appellant’s counsel relied on several authorities of this court including Leonard Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 6 NWLR (Pt.199) 501 at 547-548 and concluded that the court below has inherent jurisdiction to review its judgment in the present case in which the judgment was null and void. This issue was not addressed by the respondent in his brief of argument.
It was submitted by the respondent however, on the first issue, that the respondent’s appeal at the lower court was heard on 23-6-1998 on the appellant’s brief of argument alone because the appellant who was the respondent in that court had failed to file the respondent’s brief of argument. That the action of the court below was in compliance with the provisions of Order 6 rule 10 of the Court of Appeal Rules and the decisions in Management Enterprises Ltd. v. Otusanya (1987) 12 NWLR (Pt.55) 179 and Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22.
On the complaint of the appellant that the judgment of the court below was further vitiated by the failure of that court to hear his motion dated 23-6-1998 and fixed for hearing on 5-10-1998, before delivering its judgment on 16-7-1998, learned counsel for the respondent pointed out that the appellant’s motion for extension of time to file respondent’s brief was not filed on 23-6-1998, the day the appeal was heard but on 25-6-1998, two days after the hearing of the appeal. Counsel observed that as the motion was not pending before the court on the day the appeal was heard, the court below cannot be blamed for refusing to hear it before hearing the respondent’s appeal. Learned counsel maintained that in the circumstances of this case, no question of any violation of the appellant’s right of fair hearing occurred taking into consideration of the cases of Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22 at 32 and Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 174 at 183.
In tackling the two issues framed by the appellant in his brief of argument for the determination of the appeal, I shall start with the second issue which is whether or not the Court of Appeal has jurisdiction to review its own judgment which is null and void. The law in this respect is quite plain and well settled. If a judgment or order of a court is a nullity, it can be set aside without much ado. Dealing with this question in Craig v. Kanseen (1943) K.B. 256, Lord Green stated at page 262-
“Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex-debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it.”
This principle of law has been cited with approval in many decisions of this court particularly, Obimonure v. Erinosho (1966) 1 All NLR 250 at 252; Skenconsult (Nig.) Ltd. & Anor v. Ukey (1981) 1 SC 6 at 26; Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 at 273 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 547-548. In other words such judgments or orders are rendered null and void by fundamental defect and can be set aside. On these authorities therefore, the Court of Appeal, indeed like any other superior Court, has inherent jurisdiction to set aside its own judgment or order which is a nullity.
Going back to the first issue for determination on whether or not the judgment of the Court of Appeal dated 16-7-1998 was a nullity having regard to the refusal of that court to afford the appellant a hearing on 23-6-1998 when the respondent’s appeal was heard, all I am required to do is to apply the law to the facts and circumstances revealed in the record of appeal. The main reason the appellant relied upon in urging the court below to set aside its own judgment of 16-7-1998, was that the procedure adopted by that court in hearing the respondent’s appeal without the appellant’s then respondent’s brief of argument had deprived the appellant of his right of fair hearing guaranteed under section 33(1) of the 1979 Constitution. The question is, why was the appellant unable to file his respondent’s brief from the date he was served with the appellant’s brief of argument up to the date the appeal was heard on 23-6-1998 The facts averred on behalf of the appellant in the affidavit in support of his motion for enlargement of time to file his respondent’s brief is quite revealing at pages 13-14 of the record. The facts show that the parties in the appeal No. CA/PH/304/97 the judgment in which the appellant described as a nullity, were before the court below on 18-3-1998 when the appeal was fixed for hearing. The appeal came up for hearing on 12-5-1998 when on the application of the appellant’s counsel, who was fully aware that the appellant who was the respondent was yet to file the respondent’s brief, asked for adjournment on the ground that he had just obtained the record of proceedings. The adjournment was granted and the appeal adjourned to 23-6-1998, for hearing. Even on this adjourned date requested by the appellant for the hearing of the appeal presumably to enable his learned counsel to prepare and file his respondent’s brief before that date, the learned counsel to the appellant came to the court not only without the respondent’s brief of argument but without even an application for enlargement of time to file the same. As the result of that situation, the court below heard the appeal under Order 6 rule 10 of the Court of Appeal Rules. These undisputed facts coming from the appellant himself who also admitted that the failure to file the respondent’s brief was largely due to their error in assuming that time had not lapsed within which to file the brief, can the appellant be heard to complain that he was denied a fair hearing by the court below I do not think so. The court below acted rightly in hearing the appeal on the appellant’s brief of argument alone without affording any oral hearing to the respondent’s counsel in the absence of a respondent’s brief of argument duly filed and served or an application for an enlargement of time to file one on 23-6-1998, when the appeal was heard. See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 174 at 183 and Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22 at 32 where Karibi-Whyte, JSC said-
“A brief of argument is prima facie exhaustive of the arguments intended to be presented. Hence no oral argument is allowable except by leave of the court in support of any argument not raised in the brief or on behalf of any party in respect of whom no brief has been filed. Where parties who have filed briefs of argument are absent at the hearing, the appeal will be treated as argued on the briefs filed. This is also the position where only one of the parties had filed his brief. Thus obligation to hear the other side, i.e. audi alteram paterm, is observed by the filing of briefs which is taken to represent the case of the party in the litigation.”
In the present case therefore, the appellant who had ample opportunity to file his respondent’s brief of argument between the time he was served with the appellant’s brief to the time the appeal was fixed for hearing on 18-3-1998, to the date the appellant asked for further adjournment on 11-5-1998, up to the time the appeal was heard on 23-6-1998, may complain of any other thing but certainly not the denial of fair hearing by the court below warranting the setting aside of its own judgment of 16-7-1998 on the ground that it was nullity.
From the arguments of the appellant on this issue, it is apparent that the learned counsel to the appellant was working under the misconception that the court below could not have heard the respondent’s appeal until and unless the respondent as appellant had filed a motion on notice at the court below asking it to hear the appeal on the appellants brief alone in the absence of the respondents/brief of argument. While this is the practice in some Divisions of the Court of Appeal, it is certainly not the requirement of Order 6 rule 10 of the Court of Appeal Rules which merely stated that if the respondent fails to file his brief, he will not be heard in oral argument except by leave of court. Therefore, it is not the requirement of this rule that the filing of a motion on notice to hear an appeal on the appellant’s brief is a precondition for hearing an appeal on the appellant’s brief alone where a respondent fails to file and serve a respondent’s brief.
That was not alone, it appears learned counsel to the appellant was also of the view that the time to file the respondent’s brief of argument starts to run from the date the respondent receives the record of appeal under the Court of Appeal Rules. The case of Ajayi & Anor. v. Omorogbe (1993) 6 NWLR (Pt. 301) 512 at 527 cited and relied upon by the appellant is not in support of his case as a respondent in the appeal at the court below. This is because by Order 6 rule 2 of the Court of Appeal Rules, time within which to file the appellant’s brief is sixty days from the date of the receipt of the record of appeal by rule 4 of the same Order 6, the time within which to file the respondent’s brief is forty-five days from the date of service of the appellant’s brief. Therefore, while for the appellant under the rules the time to file appellant’s brief begins to run from the date of the receipt of the record of appeal, the starting point is not the same for the respondent whose time begins to run from the date of service of the appellant’s brief on him.
The appellant also relied heavily on the fact that the failure of the lower court to hear his motion for enlargement of time to file his respondent’s brief dated 23-6-1998 and fixed for hearing on 5-10-1998 before delivering its judgment on 16-7-1998, also nullified that judgment on the ground of denial of fair bearing. It is the law that where an appellate court like the court below refused to hear and determine all interlocutory applications pending in the court before the hearing and determination of an appeal, may indeed result in a denial of fair hearing as enshrined under the 1979 Constitution as complained by the appellant in the present appeal. In Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22 at 45 where the Court of Appeal failed to rule on an oral application for adjournment by an appellant made before it and proceeded to dismiss his appeal, such conduct was held by this court to amount to a breach of right of fair hearing justifying the setting aside of the judgment arrived at as the result of the breach. It is indeed a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the court. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637 at 644, In the present case however, as the appellant’s application dated 23-6-1998 for enlargement of time to file his respondent’s brief was not filed before the court below until 25-6-1998, two days after hearing the respondent’s appeal on 23-6-1998, that motion cannot be said to be pending before the court on the date the appeal was heard. Thus not being a pending matter before the court, that court cannot be accused of refusing to entertain it before proceeding to hear the appeal on 23-6-1998. The judgment of the court below of 16-7-1998 being the product of the hearing of the appeal on 23-6-1998 when no motion was pending before the court, cannot vitiate the judgment on the ground that the hearing of the appeal was in breach of the appellant’s right of fair hearing under section 33(1) of the 1979 Constitution. In other words even from this aspect of the proceedings of the court below, the complaint of the appellant of alleged denial of fair hearing warranting the setting aside of the judgment of the court below, has no basis whatsoever.
On the whole, the appellant having failed to establish that the judgment of Court of Appeal delivered on 16-7-1998 was a nullity on account of the appeal having been heard in the alleged violation of the appellant’s right of fair hearing under section 33(1) of the 1979 Constitution warranting the setting aside of the judgment, this appeal must fail. Accordingly, I dismiss the appeal with N10,000.00 costs to the respondent.
SC.64/2001